136 N.Y.S. 953 | N.Y. Sur. Ct. | 1912
This is an application to remove Herbert J., Chittenden as temporary Administrator of the goods, chat
At the time of the issue of the letters of temporary administration the said Herbert J. Chittenden filed a petition showing that he was one of the heirs-at-law and next of kin of the deceased; that the deceased was a resident of the county of Monroe; that he left a will which was in another county, with other personal property of the deceased; that said will would be subject to contest for reasons set forth in said petition, and that an application would be made for bringing said will before the court for probate, or for letters of administration in chief; that the deceased left a large number of heirs-at-law and next of kin, many of whom lived outside of the state of New York, and that it would require an order for publication to cite them before the court, and that delay would necessarily occur in bringing said parties before the court upon the application for probate of the aforesaid will, and that there were property interests of the deceased that required immediate attention, and in particular a proceeding in Bankruptcy Court, in which the said deceased was interested, and that the property of the deceased further required immediate care and attention by some one authorized to care for the same. It appears that the petitioner was an heir-at-law and next of kin of the decedent, and accordingly interested in the estate, and a person competent to be appointed an executor under a will in this state. The court thereupon, upon being informed as to the probable amount of the personal property of the decedent, and the filing of a bond ap
The facts being as they appear herein, there was no legal requirement to give the executors named in the will any such notice. The simple question that we meet here, and which is an important one, is: Had the surrogate authority to make the appointment at the time? The court is of the opinion
We find among the powers conferred upon the surrogates under section 2472 of the Code of Civil Procedure, subdivision 6, the authority to administer justice in all matters relating to the affairs of decedents, according to the provisions of the statute relating thereto; and under subdivision 11 of section 2481, “ and to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred.” We further find that the Code expressly gives to the surrogate authority to entertain proceedings for the probate of a will, under article 1, of title 3, chapter 18, of the Code; to grant letters of administration in chief, under article 4 of said title; and to grant temporary administration under article 5 of said title. Now, on general principles, each of these articles is independent of the other, and under appropriate conditions the court has power to entertain one independently of the other, unless there is something expressly prohibiting it in the statute. Under article 5, section 2670, we find, that: “ On the application of a creditor or a person interested in the estate, the surrogate may, in his discretion, issue to one or more persons, competent and qualified to serve as executors, letters of temporary administration, in either of the following cases: 1. When for any cause, delay necessarily occurs in the granting of letters testamentary or letters of administration, or in probating a will.”
The language is perfectly clear that, when for any cause delay necessarily occurs in probating a will, or in the granting of letters testamentary upon the probate of a will, or of letters of administration upon an application for such letters, the surrogate may, in his discretion, issue letters of temporary administration, upon the application of a creditor or a person interested in the estate.
The objection is raised that under subdivision 9 of the same section it is provided that at least ten days’ notice of the application for such an order must be made to each party to the proceeding who has appeared, unless the surrogate is satisfied by proof that the safety of the estate requires the notice to be shortened, in which case he may shorten the time of service to not less than two days. We must remember that that says “ to each party, to the proceeding who has appeared.” In this case no one had appeared; but that is no objection in this particular case, because, as a matter of practice, even when the petition for the probate of the will or for letters of administration in chief is filed before making application for temporary administration, the petition for temporary administration is usually immediately filed thereafter and letters taken without notice even to the parties who are named in the citation, for the reason that they have not yet appeared. This practice is followed and sustained in Mat
Our attention has been called by the learned counsel for the petitioner herein to some cases which he claims settle this question in favor of the petitioner. The court is obliged to disagree with this contention. I refer to the case of Tooker v. Bell, 1 Dem. 52, which Surrogate Rollins decided in 1882. In that case a temporary administrator had been appointed,
It will be observed that at that time the delay must have been occasioned by a contest, upon an application for administration, or for probate of a will, or in consequence of the absence from the state of an executor named in the will, or for some other cause. The similar provision in the Code, as
These words do not require that an application for administration must be pending arising on the question of letters or probate of a will involving a contest before the court. The statute as originally placed in the Code, and which was in force in 1882, has been twice amended, in 1893 and 1901.
The case of Sawmill Co. v. Dock, 3 Dem. 55, was a proceeding in 1885 before Surrogate Bergen, of Kings county. In that case a creditor asked for temporary administration upon the estate of a non-resident decedent, and it was shown on the return day that the service of the citation was not sufficient, but the court added that he did not think that the application could be sustained, as there was no proceeding or application pending for letters of administration in chief, and cited subdivision 1 of section 2668 of the Code, being that provision of the Code which is now subdivision 1 of section 2670, and above referred to, and said: “ This section assumes that an application is pending for letters of administration in chief before temporary letters will be issued, and that temporary letters may be granted where a delay necessarily occurs in the granting of letters in chief, in consequence of a contest arising upon the application for them.
But, as stated in reference to the previous decision, the-changing of the words of the Code does not require a contest to be pending, simply that delay exists in the issue of letters or in probating a will.
The other case referred to by petitioner’s counsel (Matter of Hill, 43 Misc. Rep. 583) was decided since the present form of the Code was adopted, and the surrogate in deciding' that case referred to the above mentioned decisions as grounds for his decision, distinctly saying that no change in the statute
For what purpose could the legislature have changed the language of these provisions, unless it was to eliminate those words which gave ground for the earlier decisions, and substitute the present form, which, plainly read and construed, does not limit the application for temporary administration until after application for probate or letters of administration in -chief has been made? It is reasonable to assume that such change was made by the legislature for the purpose of conferring such authority.
The result at which we arrive herein is in harmony with the provisions of the Code, recognizing and granting inherent powers to the court to perform its proper functions, and is in accordance with the decisions of sister states (Sager v. Mead, 164 Penn. St. 125; Jordan v. Poke, 33 Tenn. 430; McNarry v. Bell, 14 id. 302), and of the Supreme Court of the United States, in McArthur v. Scott, 113 U. S. 340, where on page 399 of the decision the United States Supreme Court says: “ Nor can we doubt that the court, in the exercise of the appropriate branch of its jurisdiction, might in its discretion have granted administration limited to the single object of defending the will and the probate against the bill in equity of the heirs. Courts vested with the jurisdiction of granting letters testamentary and of administration have the inherent
Our own Court of Appeals is in accord with this principle, as shown in Martin v. Dry Dock, E. B. & B. R. Co., 92 N. Y. 70, cited by the United States Supreme Court in the above decision. In the Martin case, at page 74, the court says: “By 2 R. S. 220, the surrogate is vested with authority ‘ to grant letters testamentary and of administration,’ and to ‘ direct and control ’ and settle the accounts of executors and administrators. Although the Surrogate’s Court is limited in its jurisdiction, it by no means follows that the surrogate had no power to issue the letters in question; he acted strictly within his jurisdiction and in granting the letters he did that which was directly within the scope of his powers and the line of his duties; the law does not direct what language shall be employed in letters issued by him or what precise powers or duties shall be laid down in the same; it does not prohibit letters in the form used in the case considered. The power being general for such a purpose the surrogate must be governed by established rules not inconsistent with the statutes relating to the organization of the Surrogate’s Court. In all matters re
“ In the English practice letters of administration are granted, limited to certain effects of the deceased, while the general administration is committed to another. Also, administration is sometimes granted in reference to a particular fund and to defend proceedings in chancery. (3 Redfield on Wills, 113.) There would seem to be no objection to intrusting to the surrogate the necessary powers in regard to the administration of estates, subject to such restrictions, as may be imposed by statutory enactment. The statutes contain no restriction in regard to the right of the surrogate to issue letters in the form of those which were proven on the trial of this action; they empower the surrogate ‘ to control and direct ’ administrators, and no sound reason exists why the surrogate, in the exercise of his authority, should not limit the application of the letters issued by him. We think it rests with him to say, in the exercise of his discretion, what power should be conferred upon an administrator, and so long as he does not exceed the authority vested in him by law there is no valid ground for assuming that the letters issued by him are unauthorized ; he has kept himself within the letter and the spirit of the statute, already cited, which authorizes him to ‘ direct and control.’ In this case he merely allowed the administratrix to institute the first step to be taken for the collection of a claim which existed against the defendant. The law does not prevent or forbid him from issuing letters in the form which he followed; he therein limited the power of the administratrix instead of extending it. The extent of the surrogate’s authority has been the subject of consideration in the Supreme Court of this State. In Dubois v. Sands (43 Barb. 412) it was laid down that the Surrogate’s Court can only exercise such
I am accordingly of the opinion that the surrogate has jurisdiction to appoint, in his discretion, a temporary administrator of an estate before application has been made in such estate for administration in chief or for probate of a will; that the court did not abuse its discretion in making the appointment of the temporary administrator herein; that the petition for such appointment was made in good faith, and was sufficient to authorize the appointment of a temporary administrator thereupon, and that no one was entitled to notice thereof at that time; that the appointment of Herbert J. Chittenden as temporary administrator of the estate of Charles T. Chittenden, deceased, was proper and legal; that the interests of the estate are and will be conserved by retaining the said Herbert J. Chittenden as temporary administrator; that the appointment of the said Herbert J. Chittenden as temporary administrator- of the estate of Charles T. Chittenden, deceased, was within the authority and jurisdiction of the Surrogate’s Court of Monroe county at the time of the filing of the petition therefor; that the petition herein praying for the revocation of said letters of temporary administration, issued to said Herbert J. Chittenden, and for the appointment of another temporary administrator, should be, and is hereby, denied, without costs to either party as against the other.
Let an order be entered according to the tenor of the foregoing decision, without costs to either party as against the .other.
Decreed accordingly.